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Brown v. United States

United States District Court, S.D. Mississippi, Northern Division

May 16, 2019

CHARLES BROWN AND TRUDY BROWN PLAINTIFFS
v.
THE UNITED STATES OF AMERICA DEFENDANT

          MEMORANDUM OPINION AND ORDER

          TOM S. LEE UNITED STATES DISTRICT JUDGE.

         Plaintiffs Charles Brown and Trudy Brown have brought this action against the United States under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., to recover damages for injuries alleged to have been suffered by Charles Brown during and as a result of a May 9, 2016 medical procedure at Keesler Medical Center in Biloxi, Mississippi. Plaintiffs allege that Mr. Brown was injured during an ultrasound and CT-guided peritoneal abscess drainage procedure when Matthew Barchie, M.D., an interventional radiologist employed by the United States, negligently inserted the trocar used in the procedure too far and pierced Mr. Brown's hepatic diaphragm and pericardium, requiring an emergency sternotomy to repair the damage. The case is currently set for a bench trial before the undersigned to commence June 10, 2019. Pending before the court at this time are the United States' Motion to Exclude the Opinions and Testimony of plaintiffs' expert, Michael Freeman, and the following motions by plaintiffs:

Motion for Partial Summary Judgment as to Defendant's Breach of the Standard of Care;
Motion in Limine and for Partial Default of Alternative Relief Due to Spoliation of Material Evidence;
Motion In Limine to Exclude Supplemental Expert Witness Opinions, or, in the Alternative, to Strike Defendant's Supplemental Designation of Expert Witnesses;
Second Motion In Limine to Exclude Supplemental Expert Witness Opinions, or, in the Alternative, to Strike Defendant's Supplemental Designation of Expert Witnesses;
Motion in Limine to Preclude Evidence of Informed Consent; and MOTION in Limine to Preclude Evidence of Allocation of Fault to Other Healthcare Providers.

         The court, having considered these various motions and related submissions, rules as follows.[1]

         Partial Summary Judgment

         Plaintiffs' motion for partial summary judgment as to defendant's breach of the standard of care will be granted. Under Mississippi law, “[t]o prove medical malpractice, the plaintiff must prove a duty to conform to a specific standard of conduct, a failure to conform to that standard, and an injury proximately caused by the breach of duty. Expert testimony must be used to establish that the requisite standard of care was not followed and that the failure was the proximate cause of the injury.” Jackson HMA, LLC v. Harris, 242 So.3d 1, 4 (Miss. 2018).[2] Plaintiffs have offered evidence from two retained experts, Carl Hauser, M.D., a surgeon, and Scott Resnick, M.D., an interventional radiologist, both of whom state that during the subject procedure, Dr. Barchie breached the standard of care by, inter alia, inserting the trocar right through the abscess, through the liver and the diaphragm and into the thoracic cavity, where it lacerated the lung, pericardium, and heart. Plaintiffs have also offered unequivocal testimony from Dr. Barchie himself that he breached the standard of care by failing to know where the tip of the trocar was at all times and to keep the tip of the trocar away from Mr. Brown's heart. For its part, the United States has identified two medical experts, Timothy McCowan, M.D, and Shannon Orr, M.D. In his expert report, Dr. McCowan states:

While certainly not expected, inadvertent puncture, laceration or perforation (with associated hemorrhage) of adjacent organs/structures is a known complication of any abscess procedure. The severity of the complication in this case is extreme end, but still not beyond reported complications in the medical literature (which include death). A variety of factors affect the frequency, nature and severity of these type complications, including the location and size of the target pathology, patient body habitus and patient motion, as well as radiologist training, skill and expertise.

         Notably, Dr. McGowan does not purport to address the standard of care or opine that Dr. Barchie did not deviate from the standard of care. The United States' other medical expert, Dr. Orr, has provided an expert report in which he states the following:

Dr. Barchie followed the standard of care while performing the interventional radiology draining procedure on Mr. Brown on May 9, 2016. Being a hepatobiliary surgeon, I'm very familiar in the anatomy of this area. The heart is a few centimeters away from the edge of the liver. While performing procedures in this area, it is not uncommon to enter the thoracic cavity. As stated in his consent to treat the patient, there is a risk of thoracic injury during this procedure. This is due to close proximity of the abscess to the heart and lungs.

         Dr. Orr has provided a supplemental report in which he adds:

Being a surgical oncologist that operates very frequently in this area, I can understand how Dr. Barchie entered the thoracic cavity. Due to the location of the abscess, the consent that was signed by Dr. Barchie states there could be thoracic injury.[3]

         In the court's opinion, Dr. Orr's proposed opinion is not sufficient to create a genuine ...


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